No. 397.
Mr. Evarts
to Mr. Christiancy.
Department
of State,
Washington, June 18,
1879.
No. 20.]
Sir: Your dispatch (No. 7) of the 29th of April
last has been received. It relates to neutral rights and the rights of
peaceable and unarmed citizens in bombarded towns. The general views upon
these subjects which you express are approved, and you were judiciously
cautious before you joined your diplomatic colleagues in signing the protest
which was addressed to the commander of the Chilian fleet, to require that
paper to be so changed as to make the protest dependent upon the truth of
the facts which originally was assumed. The prudence of this step is
understood to have since been illustrated by the disclosure that the
bombardment of at least one of the points named was by no means unprovoked,
but was in retaliation for the firing upon boats of the Chilian squadron
which approached the port under a flag of truce for the purpose of
announcing the blockade. The firing upon a flag of truce is notoriously one
of the gravest breaches of the laws of war which a belligerent can commit,
and is held to justify severe measures of retaliation, such as were adopted
in the instance adverted to.
Although the policy of this government has heretofore shown a leaning towards
neutral rights, this has never been or intended to be such as to extinguish
the just rights of belligerents, especially of comparatively weak powers. It
is apprehended that the capitalists of great European States, who have heavy
investments in the funds and in the trade of the South American countries,
are so alarmed about their interests that they may not be indisposed to deny
any belligerent rights to those countries in the war now unhappily on foot.
Undoubtedly they endeavor to impress their views and their anxieties upon
their governments at home. This department is not aware how these may have
been received. It is hoped, however, that in deciding upon the subject that
no neutral will omit to bear in mind that an acknowledgment of the
independence of the belligerents implies a concession to them of all the
rights in that character which they may claim under the public law, however
the exercise of those rights may infringe upon the interests of
neutrals.
The war adverted to is much to be deplored and, for the sake of humanity at
least, it is hoped that it may soon be brought to an honorable close.
Although our own citizens have a much smaller interest in this than those of
European countries, complaints upon the subject, especially from owners of
vessels in the carrying trade, have reached this Department. Hostilities in
this case, however, are not likely to be soonest ended, or peace to be
permanent, if neutrals show such impatience as they would not be likely to
acquiesce in if the situation were to be reversed.
In regard to the law applicable to the bombardment of unfortified places
permit me to refer you to the opinion of Attorney-General Henry Stanbery, of
the 31st of August, 1866, relative to the bombardment of Valparaiso by the
Spaniards. A manuscript copy of the paper is herewith transmitted to provide
for the contingency of your not having a printed one.
I am, &c.,
[Page 884]
[Inclosure in Instruction No.
20.]
Attorney-General’s Office,
August 31, 1866.
Sir: It appears from your letter of the 27th
iustant that the American commercial houses of Wheelwright & Co. and
Loring & Co., domiciled for commercial purposes at Valparaiso,
sustained losses of their merchandise in the conflagration caused by the
bombardment of that city by the Spanish fleet on the 31st of March
last.
The question presented for my opinion is, whether a case is made for the
intervention of the United States on behalf of these citizens for
indemnity against Spain or Chili?
I do not see any ground upon which such intervention is allowable in
respect to either of those governments.
The bombardment was in the prosecution of an existing war between Spain
and Chili. Although, under the circumstances, it was a measure of
extreme severity, yet it cannot be said to have been contrary to the
laws of war, nor was it unattended with the preliminary warning to
non-combatants usual in such cases.
It does not appear that in carrying on the bombardment any discrimination
was made against resident foreigners or their property. On the contrary,
there was at least an attempt to confine the damage to public
property.
Then, as to the Chilian authorities, it does not appear that they did or
omitted any act for which our citizens there domiciled have a right to
complain, or that the measure of protection they were bound by public
law to extend to those citizens and their property was withheld.
No defense was made against the bombardment, for that would have been
fruitless and would have aggravated the damage, as Valparaiso was not
then fortified, and no discrimination was made by those authorities
between their own citizens and foreigners there domiciled. All shared
alike in the common disaster.
The rule of international law is well established that a foreigner who
resides in the country of a belligerent can claim no indemnity for
losses of property occasioned by acts of war like the one in
question.
The bombardment of Copenhagen by the British in 1807 is a notable
illustration of this rule. Immense losses were sustained by foreigners
domiciled in that city. There was no previous declaration of war against
Denmark, and no reasonable ground upon which the bombardment could be
justified, and yet no reclamation upon the footing of these losses was
ever admitted by Great Britain. The bombardment of Greytown, in May,
1854, by the United States sloop of war Cyane, is another instance of
this rule. Losses were sustained by French citizens there domiciled,
from the fire of the Cyane. A petition to the United States from those
parties for indemnity was presented through the French minister, then
resident at Washington, but without the express sanction of his
government. Upon full consideration, this petition was refused. Mr.
Marcy, then Secretary of State, in answer to the claim holds the
following language: “The undersigned is not aware that the principle
that foreigners domiciled in a belligerent country must share with the
citizens of that country in the fortunes of war, has ever been seriously
controverted or departed from in practice.”
I have therefore to repeat that I am of opinion no ground is laid for the
intervention of the United States in favor of these parties.
I am, &c.,
Hon. Wm. H. Seward,
Secretary of State.
